Taking the Stand

by Alan Dershowitz

  “Exactly,” he repeated.

  He then asked me which dead person I would have wanted to represent as a criminal lawyer. I immediately replied, “Jesus.”

  “Do you think you could have won?” he asked.

  “In front of a Jewish jury, maybe.”

  “Those biblical Jews were tough. They didn’t tolerate troublemakers like Jesus. They probably wouldn’t have liked Jews like us from Brooklyn,” Woody mused.

  “Yeah, but imagine how different history would be if a Jewish lawyer saved Jesus. They couldn’t accuse us of killing their Lord.”

  “But he wouldn’t have been their Lord, if you had won. He wouldn’t have been crucified. And without crucifixion, there’s no Christianity, so if you had won they’d be blaming the Jews for destroying Christianity.”

  “But there wouldn’t be any ‘they’ to blame us,” I replied.

  “There’s always a ‘they,’ ” Woody said, smiling.

  Woody reminded me of the riff that got Lenny Bruce into trouble. Bruce quipped that if the Romans had electrocuted rather than crucified their enemies, millions of Christians would be walking around wearing tiny electric chairs around their necks.

  We discussed blacklisting, McCarthyism, and other subjects in which we shared a common interest. It was a wonderful birthday present.

  Several years later Woody and his then girlfriend, Mia Farrow, came to hear me speak in New York about the Rosenberg trial. I had written a positive review for the New York Times about a book that had concluded that Julius Rosenberg had indeed been a Soviet spy.24

  Woody and Mia both insisted that the Rosenbergs were innocent, and I promised to send them the evidence that Julius was a spy and Ethel a collaborator if not a conspirator.

  Over the next several years I saw Woody and Mia on a few occasions. Mia called me a few times to discuss political issues, and Woody and I wrote to each other.25

  Then everything changed. Early one morning, Mia called. We exchanged pleasantries and I asked her how Woody was. “He’s abusing my children,” she said. I replied, “Don’t even joke about that, it’s not funny.” She said, “No, really. He’s been sleeping with one of my daughters and acting inappropriately with another one.” I again asked her if she was serious, since the allegations seemed so out of character. She told me she was dead serious and asked if I could drive down to her house in Connecticut and meet with her. I told her I would, and that I would bring my wife, who is a PhD psychologist with extensive experience in such matters.

  We drove to Mia’s house in Connecticut and she greeted us. She was fixing a leaky roof while trying to take care of her numerous children, including a blind girl and a crack baby, both of whom she had adopted. She told me that Woody had started an affair with her adopted Korean daughter, Soon-Yi. When I asked her how old Soon-Yi was, she told me nobody knew for sure because she was adopted when she was a baby; she could be anywhere from seventeen to nineteen. She then told me that Woody had been seen by one of the nannies touching her daughter, Dylan, in an inappropriate way. Dylan had told her that Woody had taken her up to an attic crawl space, where he had touched her. Mia showed me the crawl space. She also showed me naked Polaroids that Woody had taken of Soon-Yi, which she had found in Woody’s apartment, along with a naked photo of Dylan. My wife then had a conversation with Dylan about her relationship with Woody.

  I was shocked and asked how I could help. Here was yet another example of a celebrity putting his own desire for immediate gratification above the needs of his longtime lover and her family. Even if only the allegations regarding Mia’s adopted daughter Soon-Yi were true, Woody’s actions would demonstrate extreme insensitivity to Mia’s family. Here is how the appellate court ultimately characterized Woody’s behavior:

  In January of 1992, Mr. Allen took the photographs of [Soon-Yi]. Mr. Allen [testified] that he took the photos at [Soon-Yi’s] suggestion and that he considered them erotic and not pornographic.… We do not share Mr. Allen’s characterization of them. We find the fact that Mr. Allen took them at a time when he was formally assuming a legal responsibility for two of Ms. [Soon-Yi’s] siblings to be totally unacceptable. The distinction Mr. Allen makes between [Soon-Yi and] Ms. Farrow’s other children … is lost on this Court. The children themselves do not draw the same distinction that Mr. Allen does. This is sadly demonstrated by the profound effect his relationship with [Soon-Yi] has had on the entire family. Allen’s testimony that the photographs “… were taken … between two consenting adults wanting to do this …” demonstrates a chosen ignorance of his and [Soon-Yi’s] relationships to Ms. Farrow, his three children and [Soon-Yi’s] other siblings. His continuation of the relationship … shows a distinct absence of judgment. It demonstrates … Mr. Allen’s tendency to place inappropriate emphasis on his own wants and needs and to minimize and even ignore those of his children. At the very minimum, it demonstrates an absence of any parenting skills.26

  On that day we met at her house Mia asked me to call Woody and tell him to stop doing what he was doing. She told me that Woody admired me and that he kept a copy of my book Chutzpah27 on his bedside table.

  I asked Mia to have Woody call me. When he didn’t, I decided to write him a letter, which I asked his lawyer to give him. In the letter, I urged Woody to try to resolve the matter privately:

  I still believe that matter can be resolved without even more escalation and damage to all parties. As you and Mia both know, I am a great admirer of your work, and I do not want to see your career and your life destroyed. Right now you are on that road and something must be done to head it off, not only for your sake, but for the sake of the children and for Mia.

  I don’t know whether he ever got the letter. I received no reply. Mia then asked me to contact his lawyers to see if the matter could be resolved without any public disclosure. I called his lawyers and they agreed to a meeting in New York. I brought with me to the meeting a law school classmate, David Levett, who was a leading lawyer in Connecticut and was knowledgeable about Connecticut law relating to such issues. Our goal, and Mia’s, was to bring about some resolution of this troubling matter without any publicity, which she felt would be harmful to her children.

  In the middle of the meeting, we received notice that Woody’s lawyers, the very lawyers we were discreetly negotiating with, had publicly filed a lawsuit against Mia, and that Woody was about to hold a press conference in which he was going to accuse Mia of making up stories about him.

  I was shocked at this duplicity—I’m not used to dealing with lawyers who mislead their opponents in this way.

  Woody Allen’s suit sought custody of several of the children Mia had originally adopted, as well as the biological child they had conceived together. It was an extraordinarily stupid move on the part of Allen’s lawyers, because at the time he filed the custody suit, Woody Allen barely knew the children and their siblings, had no idea who their friends were, did not know the names of their pediatricians, and had virtually nothing to do with their upbringing. Mia Farrow, on the other hand, was a hands-on mother who was deeply involved in every aspect of her children’s lives.

  At the trial, Woody’s lawyers pulled off an even more boneheaded maneuver. They claimed that Levett and I, by seeking to resolve the matter quietly, were “blackmailing” Woody into settling the case favorably to Mia. This was a ridiculous claim, as the judge found, since Mia was focused on the welfare of her children, not on money. Courtroom observers could not believe that Woody’s lawyers would force me to appear as a witness, knowing that I would surely side with Mia in her efforts to maintain custody of her children. But having been falsely accused of trying to blackmail Woody, I had no choice but to testify as to precisely what had transpired. It was entirely predictable that I would testify, especially since Woody Allen’s lawyers made certain that their accusations against me were given to the media. No one could understand why Woody’s lawyers had decided on a tactic that would make me a witness. But I knew something others didn’t know,
which led me to conclude that the lawyers had put me in this position not out of a desire to help Woody, since there was no way my testimony could in any way support his claim. They had accused me of blackmail in an effort to hurt me.

  Why would they want to hurt me rather than help their own client? Because the senior partner of the law firm representing Woody, a former prosecutor named Robert Morvillo, was seeking revenge against me for my having prevented him from becoming the United States attorney for the Eastern District of New York. It was his dream job, and he had been about to get it when I exposed his prosecutorial misconduct in a case I was litigating. He had essentially bribed a key government witness with money that was owed to the creditors of a bankrupt corporation. He had arranged for the witness to obtain the bankrupt funds, which he knew had been secreted in a Caribbean account. In doing so, Morvillo had committed two serious crimes: bribing a witness and facilitating the stealing of bankrupt funds. The federal district judge who presided over the case wrote a scathing opinion condemning Morvillo’s actions. That opinion appeared as a front page story in the Village Voice (under the title “Prosecutor Beyond the Law?”),28 thus scuttling any chance Morvillo had of receiving a federal appointment. Morvillo was so angry that he told the Village Voice that if he ever saw me again, he would “deck” me.29 He never had a chance to throw a punch at me, and so he decided, in my opinion, to use the Woody Allen lawsuit as a way to deck me. I’ll bet that he never told Woody of his hidden agenda.30

  As any decent lawyer would expect, the ploy backfired. My letter to Woody, coupled with the testimony of other lawyers who were involved in the negotiations, proved that my interest was in protecting the children, not in blackmailing Woody. I testified that I was seeking “to have a preliminary discussion which might eventuate in saving the children from the kind of atmosphere that they have tragically been placed in as a result of Woody Allen’s lawyers.”

  My testimony, in sum, was very supportive of Mia’s efforts to retain custody of her children and highly critical of Woody’s attempt to portray her in a negative light.

  The judge credited my testimony and ruled against Woody Allen in every respect, denying him not only the custody of the children, but even the right to see his own biological son without severe restrictions. As far as I know, Woody Allen has not seen his biological son since, who has grown into quite an adult, having won a Rhodes Scholarship for his work on human rights.31 To this day, I doubt that Woody knows how Robert Morvillo tried to use his case to settle a score with me.

  Shortly after it was publicly announced that I would be helping to defend Mia Farrow against the lawsuit brought by Woody Allen, I got a phone call. When I picked up, the voice on the other end said, “Hey Alan, this is Frank.”

  I asked, “Frank who?”

  The voice on the other end sounded surprised by the question. “Frank Sinatra.”

  Sinatra had previously called me when Kitty Kelley’s notorious biography about him32 was about to be published. He had asked if I was interested in representing him in a lawsuit against Kelley for defamation. I had described what effect the lawsuit would have on the quality of his life and told him that I thought it would be a bad idea to bring one.

  “Nice to talk to you, Mr. Sinatra,” I responded.

  He immediately got down to business. “I love Mia. We were married, you know. She’s a great girl. Woody’s trying to bully her. He can’t be allowed to get away with that. What can I do to help?”

  I told Mr. Sinatra that I appreciated the call, but that the legal case was under control.

  He quickly responded, “Well, beyond the legal case, what can I do to call Woody off?”

  Aware of Sinatra’s reputation as a tough guy, I nervously told him to leave it to the lawyers, and that any approach to Woody Allen would be used against Mia and would likely backfire.

  Several months later, during the summer, André Previn—another of Mia’s former husbands—was performing on Martha’s Vineyard. My wife and I attended his concert and then went to a reception that followed. Previn, like Sinatra, told me how much he loved Mia.

  He continued, “I feel like marching up to Woody’s apartment, knocking on the door, and punching him in the face.”

  Recalling the Sinatra call, I let out an uncontrollable laugh. “If I wanted any of Mia’s former husbands to put the fear of God in Woody Allen, I’d pick Frank Sinatra over you, Mr. Previn.” He laughed in agreement.

  I continue to have a good relationship with Mia. Woody Allen eventually married Soon-Yi, and they have adopted children. Their marriage seems to be working.

  Surprisingly, the massive publicity generated by Woody Allen’s foolish lawsuit did not hurt his career. Nor does it seem to have had a negative impact on the quality of his life. During the trial itself, the publicity was brutal, but when it was over, both Allen and Farrow managed to restart their lives.

  I try to learn something from every case. The Woody Allen-Mia Farrow and the Clinton-Lewinsky cases taught me how perilous it can be to litigate instead of settling cases involving high-profile clients.

  You don’t learn how to manage such cases in law school. There are no rule books. Experience is the only teacher. After years of working on dozens of high-profile cases, I now try to teach my students how to avoid, or at least minimize, inevitable mistakes. Here are some of the rules I’ve come up with for handling high-profile cases:

  1. Never take a case just because the client is a celebrity, or because the case is “high profile.” Make sure the issues in the case are within your area of expertise.

  2. If you do take the case, don’t socialize with the celebrity. Never assume the celebrity is your friend. You have a professional relationship. Charge your usual fee. No discount, and no price gouging.

  3. Settle the case quietly if at all possible. Don’t let the good publicity you might get from trying the case influence your judgment if trying the case may cause bad publicity or other negatives for your client.

  4. Never say anything about the client or the case to anyone unless you are prepared to see it printed in the New York Times, the National Enquirer, or the Huffington Post. Remember that judges, jurors, and prosecutors, their family members, their friends and colleagues all watch television and read the papers. The media environment may have an impact on their decisions.

  5. Every time you meet the client, be prepared to be fired for telling him what he doesn’t want to hear. Famous people often get bad medical treatment and bad legal advice for the same reason: The doctor and lawyer don’t want to offend or upset them. They care more about holding on to the patient or client than telling him the painful truth.

  6. Don’t pretend your celebrity or high-profile case is just like every other case. The media is watching your every move, and every move you make should take into account the anticipated media coverage. This doesn’t mean you should make or refrain from making the right move because of the coverage, but rather you should consider what the right move is.

  7. High-profile and celebrity cases tend to distort the legal system, because the law treats famous people differently—sometimes better, sometimes worse. It has been said that hard cases make bad law. So, often, do high-profile cases.

  8. Celebrities will almost always disappoint you. Most are boring, banal, and self-centered. Working on a high-profile case is a decidedly mixed bag. If you never have a celebrity case during your career, you haven’t missed anything.

  9. Clients, whether civil or criminal, are increasingly brought to trial not only before a judge in robes and a jury of peers, but also in the “court of public opinion,” where every citizen gets to cast a vote on the legal and moral aspects of the case. For some clients in the public eye, the “verdict” rendered by the court of public opinion may be as important as the verdict of the jury. A lawyer must be prepared to face the media, where the usual rules of evidence do not prevail. A lawyer must learn the different “rules” of the court of public opinion and must develop the skills with whic
h to win in that important forum as well.

  10. Despite the often distorting effect of the media on the administration of justice, the press can serve as an important check and balance on judges, prosecutors, and defense lawyers. The First Amendment, which guarantees freedom of the press, may sometimes be in conflict with other amendments designed to guarantee a fair trial. An appropriate balance, difficult as it is to achieve, is essential to democratic governance.

  My Seventy-Fifth Birthday Party

  During the summer of 2013, my family was planning a party on Martha’s Vineyard to celebrate my seventy-fifth birthday. President Obama and his family were planning to vacation in the house right next to ours during that period, and I agreed to allow some unused land near my home to be used for a communication truck. When the workers began to install the communication equipment, one of them mentioned my birthday party. When I asked how he knew about the party, he said, “The code name for the presidential visit is: ‘Alan Dershowitz’s birthday party.’ ”

  THE NEVER-ENDING QUEST FOR EQUALITY AND JUSTICE

  20

  THE CHANGING FACE OF RACE

  From Color Blindness to Race-Specific Remedies

  When I was growing up in the pre–Brown v. Board of Education era of legally mandated segregation, the goal of all decent people was the same: color blindness. As Martin Luther King was to put it so eloquently several years later:

  I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.1

  Among my friends and family, we all shared that dream of a color-blind America, where success would be based on merit, not race, religion, gender, national origin, ethnicity, class, sexual orientation (this came a bit later), or any other irrelevant or invidious characteristic.